Saturday, August 31, 2013

By Mike DorfSuppose that President Obama and Secretary Kerry agree with my recent post arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps, Turkey or Israel) or UN Security Council Authorization, would plainly violate international law. On what grounds might they justify doing it anyway? I can think of three possible sets of reasons, each problematic in its own way.(1) They don't give a damn about international law. That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law. In any event, I don't think it's a fair account of Obama, Kerry and their underlings.(2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian grounds, but they think there ought to be such a norm and that by acting as if there is one, their actions will have normative effect. Columbia Law Professor Matt Waxman made an argument of this sort last week: The illegal actions in Kosovo and now Syria will eventually establish precedents, he says. I think this may well be what some (e.g., Samantha Power) in the Obama Administration may be attempting, but I also think that, if so, they're kidding themselves. As I explained in my recent post, a norm does not rise to the level of customary international law unless and until there is a strong consensus in the normative practice of nations in favor of that norm. But in the case of Kosovo there was substantial dissent from the NATO action and there is now even more substantial dissent from the proposed action in Syria. In order to build a norm permitting non-Security Council-authorized armed force on humanitarian grounds, the interventions need to not only occur, but to occur with the approval of the international community. And acquiescence in the sense of lack of military resistance to an armed action by the world's most powerful military does not count as approval.(3) They care about international law in general but they think that there are circumstances so extreme as to warrant violating it. In domestic law, the illegality of a course of conduct should raise only a strong presumption against engaging in that conduct. If there are compelling moral (or other reasons) for breaking the law, then one breaks the law. There is a substantial body of literature on when civil disobedience is and is not justified. That work mostly addresses justified violations of domestic law applicable to individuals, but perhaps it can be adapted to international law applicable to sovereigns.

However, there is a major obstacle to adapting the civil disobedience justification to the present circumstances. The leading theorists and practitioners of civil disobedience--Thoreau, Gandhi, MLK Jr., Rawls--have all emphasized that morally justified civil disobedience must be civil, i.e., nonviolent. So if there were some proposition of international law requiring the use of force, it would be relatively straightforward to translate the individual-focused history and literature of civil disobedience into a justification for some sovereign refusing to use force, but here we have a norm forbidding force and the U.S. proposing to act in violation of that norm by using force. That is, at the very least, a substantial departure from the usual way in which civil disobedience is understood.Well, so what? Perhaps the Administration's view is somewhat broader. Perhaps the Administration position is not so much based in the conventional account of civil disobedience but in a simpler calculation. Under this simpler view, regulated actors have a prima facie duty to obey a legal norm, but other duties may create a stronger duty to violate the legal norm. Cashing this out in practice in the current context would mean something like this: Force may only be used in the service of humanitarian aims notwithstanding its illegality where the moral justification for the use of force is very strong. The rule would need to take something like that form because a just-barely convincing moral justification would not overcome the presumption in favor of compliance with the legal prohibition; if it did, then one might as well say that the legal norm has no real force.So, does the argument work? I continue to be extremely skeptical. Secretary Kerry's speech outlining the case for force persusasively argued that the Assad regime used chemical weapons against civilians and that this was a gross violation of human rights under international law and any decent moral view. But that does not make the case for bombing Syrian military assets--whether those connected to chemical weapons or unconnected--persuasive, much less very strong.Why not? Well, for one thing, a big chunk of the justification for force offered by the Administration and its hawkish cheerleaders is the need to maintain U.S. credibility in light of President Obama's earlier statement that the use of chemical weapons would be a "red line." But maintaining credibility is not a moral principle. It is at best a tactical one.If I tell one of my daughters that unless she cleans up her room before suppertime she will get no supper, and she then fails to clean up her room, I may feel obligated to deny her supper, or else lose credibility going forward, but the obligation is not a moral obligation. To extend the analogy, if, in a thoughtless moment, I tell my daughter to clean up her room before suppertime or I shall not feed her for a month, then my subsequent felt need to maintain my credibility when she again fails to do so would not and should not provide any sort of defense if I carry through on the threat and am subsequently prosecuted for child neglect or endangerment. My fellow citizens would rightly judge me not only a lawbreaker but a monster.Likewise here, one has the very strong sense that were it not for the president's earlier loose talk about red lines, he would not now even be considering missile strikes. That leaves the impression that the Administration believes that the humanitarian objectives of the missile strike are not by themselves strong enough to justify it.Whether or not that is actually what the Administration is thinking, it is what they ought to be thinking. If one wants to justify the use of military force on humanitarian grounds, then one should at least make the case that the use of force is likely to improve the humanitarian situation. The Administration has not done so and I doubt it could. The basic argument in favor of the limited missile strikes appears to be that these will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons. I suppose that's possible. It's also possible that the regime will be emboldened by the limited nature of the strikes to use chemical weapons again, daring President Obama to strike again, and--in light of the Administration's having wisely ruled out putting boots on the ground--essentially calling the president's bluff. Or, as threatened, Syria, Iran or Hezbollah could retaliate by attacking civilians in Israel, or could increase sponsorhsip of terrorism against Americans worldwide. The frightening possibilities are endless, and it appears that people with much more intimiate knowledge of Syria and the Middle East than I have are quite worried about them. When the use of military force is at least as likely to widen suffering as it is to curtail it, the moral justification for that use of force can hardly be said to be strong.A pacifist friend of mine has a t-shirt that says "I'm already against the next war." One does not need to be a complete pacifist to sympathize with the sentiment. One only needs to share the view expressed in George Washington's Farewell Address: that entanglement in foreign disputes rarely does us or anybody else much good. He wrote that "Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities." Substitute the Middle East of today for Europe of the late 18th Century and the observation hardly becomes less true. The American People appear to understand that. Unfortunately, our leaders appear not to.

Friday, August 30, 2013

My Dorf on Law post yesterday was focused mostly on the all-but-certain return of the debt ceiling as the political crisis this Fall. At one point in the post, however, I mentioned a related point:

"[N]either the White House nor the Democratic leadership in Congress has
come up with any strategy -- even a completely defensive one, much less
an affirmative vision -- with which to win over the public. Are there
any Democratic Senators or Representatives who are spending the recess
selling the Democrats' budget strategy to their constituents? No,
because there is no strategy."

As I reflected on yesterday's post, two further questions came to mind: (1) Am I being unfair to the President and his party, asserting that they have no strategy, when in fact they are merely the victims of House Republicans' intransigence? (2) Is it really such a bad thing that the President has not, at the very least, imprinted his vision for economic policy on the public's mind?

On the first question, my initial inclination was to do the simple research necessary to see what policies the Administration has actually proposed. I could look at the White House's website, for example. In addition, the President has included economic policy proposals (or, at least, broad ideas) in various speeches. Moreover, the White House did submit a full budget proposal earlier this year (as required by law). Surely, therefore, it would be wrong to claim that the President has never articulated things that he would like to see happen, across the range of economic policy areas.

Still, it is notable in itself that I would need to engage in even a small amount of research to remind myself what it is that the President seems to want. If a budget-obsessed academic like me has to stop and scratch his head, trying to recall some of the things that the President has proposed, that is not a good sign.

Without doing any research, what could I remember? The President has proposed an increase in the minimum wage. He has proposed more support for community colleges. I am fairly certain that he has proposed some progressive tax increases. On the downside, he has recently proposed an absurd rating system for colleges, which would determine funding levels based on some No Child Left Behind-like "objective" measures that again blame educational institutions for society's ills. (He has also, for no apparent reason and based on no particular expertise, endorsed turning law school into a 2-year program.) He has offered to cut future Social Security benefits.

For good and ill, therefore, the President has offered some economic ideas that are not completely forgotten. That, however, is definitely not the same thing as a strategy. As I wrote yesterday, a Democratic officeholder who wanted to sell her constituents on the President's budget strategy would have nothing to say. She could repeat various proposals that the President has meted out over the years. But what, exactly, is the strategy? What is the message?

Whatever else one might say about the Republicans (and it would all be bad), it is at least true that we know what they currently hope to accomplish, at least in the short run. (As I argued earlier this year, here and here, their only unalterable "principles" seem to be cutting taxes for the rich, and opposing anything that Obama favors.) Every Republican officeholder can say to his constituents that he favors cutting spending (especially spending that helps poor people), that he wants to cut taxes (especially for rich people), that he opposes regulations of all kinds, and so on.

It speaks well of the Democrats, of course, that their position is nuanced, which makes it more difficult to put their proposals on bumper stickers. Even so, we do not really know whether the President favors an increase in short-term deficits, and if he does, whether he is deliberately trying not to say so. Again, however, a strategy need not be based on simplistic slogans. There is, as far as I can tell, virtually nothing affirmative for Democrats to say to voters, other than, "We're not lunatics."

Sane is better than crazy, of course, but Democrats have no unifying concepts within which their various policy ideas seem to fit. Certainly, even interested observers like me are left wondering just what the President really wants. Does he care about anything, when it comes to economic policy? I am sure that the President's defenders would say that he does, but why is it even a plausible question to ask?

The answer to my first question -- whether it is unfair to say that the President lacks a budgetary strategy -- is thus "no," unless one drains the word strategy of all meaning. My second question is whether this is actually such a bad thing. It is certainly not unprecedented for a President to focus on other issues, becoming consumed with matters that demand immediate attention. In the extreme case, I recall criticizing the first President Bush for having no economic strategy at all in 1991-92, even as he ran for reelection. I noted that he had not bothered even to provide much in the way of unpublicized economic policy proposals. Other than being in favor of cutting capital gains taxes, we had no idea what he wanted, or whether he cared about anything economic.

As a political matter, of course, Bush I was simply trying to run on his foreign policy, claiming that the first Gulf War showed his brilliance as a global strategist. Even though his son ended up showing how to make much bigger mistakes when it comes to starting wars, it was not even true at the time that the Bush foreign policy was much of a success. (People often forget just how murky the beginning of that whole debacle was, with Iraq's invasion of Kuwait having been all but green-lighted by a Bush representative.) Nevertheless, he thought foreign policy was his strong suit, and he openly neglected economic policy.

It is difficult to think of any Presidents, other than Obama and the first Bush, who seemed to have no economic vision or strategy at all. Bush became a one-term President because of his neglect, and Obama averted that fate only by being blessed with self-destructive opponents and strong on-the-ground political operations. The country survived Bush's indifference to economics, in part because the Democrats running both Houses of Congress made sure that economic policy ambled along relatively smoothly.

We do not have that luxury today. On the other hand, the very reason that economic policy is so important today -- the craziness of House Republicans -- might also be a reason that it does not really matter whether the President or his party have a strategy that goes beyond controlling the damage.

Maybe. As I suggested yesterday, however, this still leaves the Democrats with nothing to say to voters, and it does not allow them to articulate a starting position on which future negotiations can be based. They oppose draconian, regressive policies, which is good. Without something actually to support, however, they can define success down to the point where they agree to pass policies that are merely slightly less draconian. This is a failure of leadership.

Thursday, August 29, 2013

When Congress returns from recess after Labor Day, the news will be completely dominated by talk of budget brinksmanship, continuing resolutions, default, and other insanity. In my Verdict column today, I try to explain the debt ceiling in the current budgetary and legislative context.

Regular readers of Dorf on Law will hardly be surprised that I re-explain the trilemma. (A quick example for first-time readers: a trilemma is the impossible situation in which a President is supposed to spend $1000 and collect $800 in tax revenues, but is limited by the debt ceinling to borrowing no more than $50. He will have to break at least one law, no matter what.) I spend surprisingly little time, under the circumstances, discussing the argument that Professor Dorf and I have made, that the President's constitutional obligation is to violate the debt ceiling law, not the spending or taxing laws.

The bigger point of the column is to point out that the Democrats have still bought into the idea that there is only thing that the President can do in a trilemma (violate the spending laws), and that they do not understand that this would (a) be illegal, and therefore (b) give House Republicans the grounds that they have desperately been searching for, on which to impeach the President. The Republicans are trying their damnedest to set an impeachment trap (although the timing, as I describe below, is conspiring against them), and the only thing that Obama has done is to repeat that he will not negotiate over the debt ceiling.

Notably, neither the White House nor the Democratic leadership in Congress has come up with any strategy -- even a completely defensive one, much less an affirmative vision -- with which to win over the public. Are there any Democratic Senators or Representatives who are spending the recess selling the Democrats' budget strategy to their constituents? No, because there is no strategy. This bodes ill for the coming negotiations.

Although I have not worked them into a broader narrative, I will add some thoughts here on four related issues:

(1) As noted above, the timing of all of this is not going the Republicans' way. That is, they really were hoping to put the President into an impeachment trap before the current fiscal year ended on September 30. That would have allowed them to have the full-on donnybrook that they seek, without having to worry about actually doing the legislating that they are supposed to be doing (keeping the government fully operational). But when the economy turned out to be slightly stronger than expected (increasing tax revenues), and the sequestration-related spending cuts were not canceled, what might have been a July or August trilemma became a post-September 30 trilemma. Bummer for the Republicans, who then had to face the prospect of a plain ol' government shutdown, rather than an exciting new default. (Some right-wing think tanks dutifully weighed in with the news that the Republicans did not "lose" the 1995-96 shutdowns, contrary to popular opinion. "Come on, guys. Let's drive off that cliff again!!")

At one point, it even looked like the debt ceiling would not become binding until well into November, which might have served the Republicans well. They could then have passed annual spending bills (or, more likely, continuing resolutions) that would have set up a trilemma, with the trilemma date far enough into the future that everyone would be willing to say, "Well, we have enough time to deal with the debt ceiling later." Later, when the trilemma loomed, Obama would have no leverage.

Earlier this week, however, Treasury announced that the drop-dead date is mid-October, only two weeks after the end of the fiscal year. I opine in my column that two weeks is too short even by Washington standards to pretend that the debt ceiling can be dealt with separately from the spending and taxing laws. It is extremely difficult to imagine everyone agreeing on a trilemma-creating budget deal on October 1 that does not include an adjustment to the debt ceiling that will be needed only two weeks later.

I wonder, however, whether I am right about that. We know that two months is long enough for people in Washington to think that they can deal with a problem, because that was the amount of time they gave themselves with the January 1 "fiscal cliff" deal to respond to sequestration. When March 1 came along, they still could not accomplish anything. One would hope that this experience would make these guys less likely to make the same mistake, and certainly not when we are dealing with weeks instead of months. As I have been thinking about it, however, I admit that it is actually not at all difficult to picture a scene on, say, October 3, with Obama and Boehner agreeing to a continuing resolution that ends a short government shutdown, and agreeing to "get right to work" on the debt ceiling. This will be a good test to see just how clueless Obama is. If he somehow fails to combine the spending bills and the debt ceiling increase in one deal ... yikes.

(2) It is worth emphasizing that the Republicans have finally expanded their range of demands in budget negotiations, as I have predicted they would. They are now demanding repeal of the ACA, even though doing so would actually increase long-term deficits. Although many prominent Republicans are scoffing at their colleagues about the prospects for repealing the ACA, the larger point is that the conversation has now expanded from "spending cuts in exchange for debt ceiling increases" to "not even a budget, much less a debt ceiling increase, unless we get something else we really want, whether it's about the budget or not." Even if it does not work this time, we can look forward to a broader range of demands. In my column today, I mention repealing Roe, voter suppression, and anti-environmental laws. The list of possiblities, however, is limited only by the craziness of the party's base.

(3) As I have often pointed out, however, it is not only the Republican base that has gone crazy. Even people in leadership positions are espousing positions that are insane. Interestingly, even when a prominent Republican seems to understand an important point, it does not carry over to debt ceiling discussions. For example, the Republican chair of the Joint Economic Committee recently wrote a letter to the Times, arguing in favor of a balanced-budget amendment. No surprise there. Yet, in arguing that such an amendment must exclude interest on the debt, he wrote: "No Congress can control interest spending, which is a result of previous
spending decisions and the Federal Reserve’s monetary policy."

Quite true. Now, the point this guy really wanted to make was that he wanted to prevent a balanced-budget amendment from giving the Fed a reason to keep interest rates low, which the true believers are certain will lead to hyper-inflation any day now. Even so, the growth of debt -- and thus the necessity of increasing the debt ceiling -- is also "a result of previous spending decisions." Is the chairman thus a heretic in his party, refusing to use the debt ceiling as a political weapon? Maybe, but almost certainly not. During the first debt ceiling crisis, in mid-2011, he said that "unless there are serious, meaningful, trillion dollars of cuts
in reform to the budget, we’re not going to raise this debt ceiling.” On the other hand, earlier this year, he said: "America will pay its debt and will not default. There’s no question about that." The problem is that these people think that the only meaning of "default" is not paying bondholders (which is the basis of their "prioritization" strategy). So, even though paying the government's obligations under the law is "a result of previous spending decisions," apparently only some previous spending decisions need to be honored.

(4) Even though the higher-ups in the Republicans are hardly a model of sanity, the back-benchers still provide the best value for your entertainment dollar. A Republican House member from Florida argued earlier this month that the country's credit rating "would do better" if we refused to pay our creditors on time. Go read his comments here. This is seriously delusional stuff! What I like best about the quote, however, is that after he has tied himself up in knots talking about things that he clearly does not understand, it suddenly occurs to him to blurt out a safe talking point: "We don't have a money problem, we have a spending problem." Sadly, he did not even get the talking point right. The Republicans are supposed to say that we do not have a revenue problem, we have a spending problem. Either way, it is certainly a money problem. The one thing I thought Republicans could do was stay on script.

This is, of course, anything but funny. The next month (and probably much longer than that) will show just how far Republicans are willing to push the debt ceiling craziness. Do not expect a happy ending.

Tuesday, August 27, 2013

With President Obama and the leaders of various European allies intent on imminently launching missiles to punish the regime of Bashar al-Assad for its use of chemical weapons against civilians, it is probably too late to make a persuasive case against that course of action. The pragmatic arguments for and against have been well-rehearsed and--although the conclusion is highly contestable--the decision has apparently been made.

Nonetheless, to review, the case FOR such an attack boils down to two factors: (1) The use of chemical weapons is, for historical as well as humanitarian reasons, considered categorically worse than other attacks against civilians, and therefore demands a response; and (2) President Obama, having previously called the use of chemical weapons a "red line," must follow through on the threatened use of force, or lose credibility in the region and with respect to foreign policy more broadly.

The case AGAINST such an attack is at least equally powerful: (1) The Syrian civil war increasingly amounts to a Sunni/Shiite battle waged by al Q'aeda against Hezbollah, in which the U.S. cannot act without risking highly unpredictable blowback; (2) Having still not fully extracted American forces from over a decade of wars in the middle east, the U.S. has neither the appetite nor the capacity for involvement in a new one; and (3) Sea-launched missiles can only do limited damage, and unless the U.S. and European powers are willing to put boots on the ground in Syria (which they are not), such actions will either strengthen the resolve of Assad or, if they "succeed", risk the consequences described in (1).

As I said, the Administration apparently finds the FOR arguments more powerful than the AGAINST arguments. I disagree, although I acknowledge that, judged purely as a matter of pragmatic policy, this is a choice between bad options. However, the matter should not be judged purely as a matter of pragmatic policy. There is also the question of international law.

Article 2.4 of the U.N. Charter (to which the U.S. adheres as a matter of treaty law and customary international law) categorically forbids the use of armed force, subject to two exceptions found elsewhere in the Charter: (1) Articles 39-50 (of Chapter VII) grant the Security Council the power to authorize force in response to actions that threaten peace or constitute aggression; and (2) Article 51 recognizes "the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

Although there is some doubt about the authority of the Security Council to authorize force in response to "internal" matters, the pretty clear consensus view rightly holds that the Security Council can authorize force in response to aggression or atrocities in a civil war--especially where, as in Syria today, the civil war threatens to spill over the borders. With Iran and its Hezbollah clients in Lebanon directly backing Assad, while Turkey, Saudi Arabia and Qatar (as well as other Sunni-majority countries in the Middle East) promoting the cause of the rebels, the Security Council could authorize action in Syria. However, the Obama Administration has zero chance of obtaining Security Council authorization for the use of force against Syria because of the certainty of a Russian (and probably also a Chinese) veto.

Nor does Article 51 provide the Administration with a basis for the use of force. The Syrian regime has not attacked the United States or an ally to whose defense the U.S. is committed. There is some spillover of refugees and violence into Turkey, a NATO ally, but Turkey itself has not treated that as an armed attack by Syria, and Assad appears to be aware that directly attacking Turkey would bring forth a substantial NATO response.

Nonetheless, some scholars argue that customary international law recognizes a third, albeit unenumerated, exception to the Article 2.4 prohibition on the use of armed force: Nations may use force on humanitarian grounds to impede gross abuses of human rights--such as genocide or, as in Syria, the use of chemical weapons against civilians. This position is sometimes advanced under the rubric of a "responsibility to protect." In my view, there is no such responsibility under existing customary international law, and recognizing one would be potentially dangerous. Consider:

First, as a matter of international practice, there simply is no consensus permitting humanitarian interventions without Security Council authorization. For example, in 1999, NATO forces intervened in Kosovo to protect ethnic Albanians, without Security Council approval. However, there was significant dissent from that move--including by two permanent members of the Security Council (Russia and China). Although they failed to obtain U.N. approval for a resolution that would have called for halting the NATO intervention, the absence of consensus against a practice is not the same as a consensus for a practice. Yet to rise the level of customary international law, a practice must be widely observed and generally accepted as law. One might wish there were a customary international law norm recognizing a responsibility to protect, but there isn't one now.

Second, even if there were or had been a customary international law norm permitting the use of force on humanitarian grounds, the text and structure of the UN charter are best read as permitting such force in particular cases only with Security Council approval. After all, customary international law permits the use of armed force in national self-defense; yet, the Charter nonetheless expressly spells out (in Article 51) that such force continues to be permitted, notwithstanding Article 2.4 and the balance of Chapter VII. It is therefore a reasonable textual inference that national self-defense provides the only circumstance in which force is permissible without Security Council authorization.

Third, I understand some of the proponents of armed humanitarian intervention to be voicing frustration with the Security Council system itself. Given that Russia and China will usually oppose humanitarian interventions (but see Libya in 2011), proponents argue that responsible members of the international community should have the unilateral power to intervene to avoid humanitarian disasters. I have considerable sympathy for the general view. It must be frustrating for diplomats who favor humanitarian intervention to encounter resistance from Russia and China, knowing that the resistance is not based on a differing evaluation of the costs and benefits of intervention, but simply on the perceived strategic interests of those countries, without apparent regard for the value of the lives at risk.

Nonetheless, I think that the proponents of a unilateral power of armed humanitarian intervention both misconceive the point of the Security Council and underestimate the dangers of the norm they propose. As to the former, the permanent members of the Security Council (US, UK, France, Russia, China) do not hold their positions because they are, in any sense, the most virtuous countries in the world. They hold their seats as the major victorious powers in WWII (or in the case of Russia and China, as the legatees thereof). That is still a pretty good proxy for military strength, which makes sense as a matter of institutional design. If one regards global war as a catastrophe worth avoiding at nearly any cost (which strikes me as quite sensible), then one will want a system of force-authorization that does not risk pitting these militaries against one another. And that is exactly the point of giving each permanent member of the Security Council veto power. Yet, if force can be used without Security Council authorization, then this safeguard against global conflict is circumvented. To be sure, the Charter recognizes one circumstance in which unilateral force is authorized: response to an armed attack. But that is because countries will inevitably respond with force to armed attacks and perhaps to deter such attacks in the first place.

Finally, it is worth noting that wars--certainly including civil wars--frequently produce atrocities by more than one side. A norm permitting powerful countries to use force on humanitarian grounds without prior Security Council authorization could very well increase the likelihood that small-scale conflicts become large-scale conflicts, resulting in greater, not less, suffering. The UN Security Council system for authorizing, and for not authorizing, the use of armed force, is imperfect because powerful nation-states (including Russia and China but also the other permanent members) often pursue their perceived national strategic interests rather than simply aiming at righting wrongs. But the alternative world to which we may be heading--the world of unilateral armed humanitarian interventions--may very well turn out to be worse.

In my Dorf on Law post this past Friday, I again discussed the open-endedness of the supposedly rigorous and "normatively neutral" economistic approach to analyzing social issues. This is hardly new ground for me, of course. I again noted that it is possible to flip any economistic conclusion on its head, simply by changing what one counts among the costs and benefits, especially when one takes into account things that are inherently difficult to measure (but that are conceptually central to a complete analysis).

At the end of the post, I explored an objection to a recent NYT op-ed by Peter Singer. Singer had claimed to be able to prove, via a cost-benefit analysis, that any moral philanthropist would want to give money to fight trachoma, a blinding eye disease that afflicts people in the poorest countries, rather than giving that money to build a new wing on an art museum. In a letter to the editor, a reader pointed out that the fabric of a society in which one expects people even to think about such moral concerns is woven from educational and cultural investments that combine to "produce moral people," as I characterized it in my post.

My point was that one can always set up a perfectly plausible cost-benefit analysis, in which the outcome relies on some difficult to measure -- but essential -- variables. That is not to say, of course, that the more complicated example is right, in any meaningful sense. In his post yesterday, Professor Dorf offers a fundamental objection: "I'm somewhat skeptical of the particular claim because it is possible to value art but not morals." That is both right and wrong, in exactly the way that economistic reasoning makes everything right and wrong.

That is, the broader (but still economistic, cost-benefit oriented) approach that the letter writer implied does not require that we put a value on morals directly, but rather that we acknowledge that moral societies do different things than immoral societies do. We might not be able to measure morals (although I would bet that some economists claim that we can), but we can certainly note that many societies that value art and culture tend also to exhibit more public-spiritedness. Even before we reach the question of supporting public cultural institutions, such societies tend to be populated by people who would think to give money to prevent another person's blindness (even when that other person is not of the donor's clan), rather than saying, "I've got mine, Jack. Sucks to be you."Again, however, Professor Dorf's point is also right, because we should be skeptical of any particular claim that is based on a cost-benefit analysis -- especially one that presumes contestable cause-and-effect relationships. (Skepticism need not lead to rejecting all claims, of course.) Professor
Dorf mentions the Nazis, who put a strong emphasis on art, but who
were quite willing actually to kill innocents, not just to allow them to die of
preventable diseases. Surely, that example would lead even a committed arts lover to doubt
that money spent on the display of public art inexorably produces people with
kinder hearts.

In other
words, neither Professor Dorf nor I would say that the letter writer's
point is "true" in the sense that it proves that the money should
definitely go to build the new wing on the art museum. And neither of
us would say that it is "false" in the sense that it could not be true
under any plausible assumptions about cause and effect. But Professor Dorf's objection is deeper, as I will describe momentarily.If I were in the exact position of Singer's philanthropist, I would give the money to fight trachoma in an instant. Why? Because, if I want to use a cost-benefit approach, I can easily be convinced that the marginal difference I could make to the trachoma victims is much larger than the marginal contribution that I could make to the world's level of civilized attitudes. Yet cost-benefit analysis is almost certainly not really what is driving my moral reasoning.What we end up with, therefore, is another situation in which the economistic approach proves too much, and we are left trying to use other approaches to find acceptable answers to our questions. Professor Dorf, attacking utilitarianism from what he describes as "the opposite direction" of my attack, says that utilitarianism's real problem is that it is too demanding, rather than insufficiently demanding. By this, I think he means that utilitarianism, if taken seriously, would require people to take truly radical actions (giving almost all of their money away, as noted below), whereas my description of the problem seems to suggest that utilitarianism is totally open-ended, not requiring a person to do anything that he does not already want to do.Again, I think this is both right and wrong, in ways that leave me in agreement with Professor Dorf. The letter in the Times was not, after all, really objecting to the conclusion that Singer draws from his specific, heavily loaded example. The objection is, as Professor Dorf describes it, that Singer's approach is too demanding. If we use Singer to justify donating to fight trachoma rather than giving to build a wing on an art museum, how do we not end up concluding that we should never fund any of the things that we believe make society civilized, so long as there are sick people in the world?

Interestingly, however, one of the examples that Professor Dorf mentions is itself subject to the "insufficiently demanding" objection. A cost-benefit justification for progressive taxation, relied upon by liberals, is that $1 in the hands of a billionaire does almost nothing to increase his happiness, whereas the same $1 in the hands of a starving child can make an enormous difference in that child's life. Professor Dorf accurately describes it thus: "Given the diminishing marginal utility of wealth, in a wide range of circumstances one can do more good with one's money by giving nearly all of it away than by spending it on oneself and one's family, even once one takes account of transaction costs." Therefore, simple utilitarianism calls for us to redistribute from rich to poor. Professor Dorf's "too demanding" objection is that this would call for complete egalitarianism, because there is no limiting principle to the marginal redistribution that utilitarianism seems to require.The problem is that the premise of this example might not be true, as a positive matter. My former colleague Sarah Lawsky published an article in 2011, in which she looked at the available evidence that could tell us whether the marginal utility of a dollar in the hands of richer people really is lower than its marginal utility in the hands of poorer people. She found, at the very least, that there are too many anomalies in the statistical evidence to be especially confident about the standard liberal assumption.Professor Lawsky's point, however, was not that we can therefore simply stop worrying and love regressive taxation. Instead, she argued that people can (and should) favor progressive taxation, but that they should admit that they do so either because they are making assumptions unsupported by the available evidence, or because they are ultimately not basing their moral decisions on cost-benefit analysis.Which is how we all end up in the same place. The economistic approach -- in which self-styled amoral analysts purport simply to measure costs and benefits, reporting to the population at large that some policies will result in a net increase in social utility, while others will decrease it -- is a sham. Every time someone like Singer comes along and says that there is an objective answer, based on positive (not normative) analysis, he says too much and too little. It is a pose, and it ultimately relies on something else to reach its conclusions. What looks like a lack of evidence is actually a lack of clarity.

Monday, August 26, 2013

By Mike DorfProfessor Buchanan's post on Friday problematized a recent NY Timescolumn by Peter Singer that I also found problematic--but my chief difficulty with Singer's analysis is somewhat different. I'll try to spell it out here.To review, Singer argued that it is possible for a philanthropist to use cost-benefit analysis to figure out where his or her charitable contributions can do the most good. For illustrative purposes, he asked whether it would make more sense to donate money to fund a new wing of an art museum or to curing trachoma--and thus preventing blindness--in the developing world. As Professor Buchanan notes in a post that is generally devoted to showing the dependency of cost-benefit analysis (and economic analysis more generally) on baseline assumptions, the question is really unanswerable, because institutions like art museums may help foster a moral culture that does more long-term good than any campaign focused on any specific illness. I'm somewhat skeptical of the particular claim because it is possible to value art but not morals. See, e.g., Nazism. Nonetheless, the broader point strikes me as right; tracing the good we do in the world is extraordinarily difficult so that we might say it is ex ante unknowable.But let's put that point aside. Suppose you are quite confident that Singer is right about the particular art museum. That is, you have very good reason to think that people who go to enjoy the art in the new wing of the museum will not be moved to act in a morally better fashion than they would have acted if they had not gone to the art museum or, as in Singer's hypothetical example, if they had gone to see the same art but in the old display rather than in the new wing that donations will go towards constructing. Now is it true that your donation to fighting trachoma will do more good than your donation to building the new wing of the art museum? I think the answer is yes but I have serious doubts about the mechanism Singer uses to get us there.Singer makes some assumptions about how much it would cost to build the museum's new wing and to deliver aid to trachoma victims to propose the following thought experiment:

[I]magine that an evil demon declares that out of every 100 people who see the new wing, he will choose one, at random, and inflict 15 years of blindness on that person. Would you still visit the new wing? You’d have to be nuts. Even if the evil demon blinded only one person in every 1,000, in my judgment, and I bet in yours, seeing the new wing still would not be worth the risk.

And so, if you yourself wouldn't choose to patronize the museum at that risk of blindness, then you shouldn't fund the museum rather than the trachoma treatment at the statistically equivalent risk of failing to cure blindness.One standard objection to utilitarianism is that it falsely assumes an ability to make interpersonal comparisons of utility. In this example, that objection would be that while any individual might prefer avoiding the risk of blindness to seeing the art in the new wing, the actual choice is whether to provide an enhanced experience of art to one set of people or to fail to intervene to prevent blindness for a different set of people. If we cannot make interpersonal comparisons of utility then we cannot know that the additional pleasure for the hundred (or thousand) people who see the art in the new wing does not outweigh the additional discomfort for the one other person who experiences the blindness.I don't buy the objection to interpersonal comparisons of utility. Just about all systems of morality assume its possibility. Think of the Golden Rule, for example. Moreover, biology appears to confirm that we (and other animals) have mirror neurons that enable us to understand the world as seen by others.But there is, in my view, a more profound objection to utilitarianism: It does not respect the distinction between acts and omissions. In Singer's demon hypothetical, visiting the new wing of the art museum inflicts blindness (via the demon's act), but in the original question, donating to fund the new wing of the art museum means failing to act to cure trachoma. The difference is often critical.Consider this hypothetical example. Suppose you wake up on your seventieth birthday to discover that you have "Buchanan-Dorf Syndrome", a degenerative disease of the optical nerve that, if left untreated, will leave you blind by the time you are seventy-five. Given your current life expectancy, that means you will experience about fifteen years of blindness. Your doctor tells you that there is a very promising treatment available for Buchanan-Dorf but it has not yet been approved for use in the U.S. and therefore your health insurance won't cover it. You can travel to a foreign country for the treatment at a cost of $100,000. Or (per Singer's numbers), you can decide to suffer with Buchanan-Dorf and donate your $100,000 to spare one thousand people with trachoma from fifteen years of blindness each. Would it be wrong to spend the $100,000 on yourself?Deontologists have little difficulty with such a question. They say of course it's not wrong. It would be very generous of you to suffer the blindness so as to spare a substantially larger number of people blindness, but you are under no moral obligation to sacrifice your own well-being for others. Indeed, you are not even under a moral obligation to spend your spare $100,000 on curing the trachoma of strangers rather than on a super-luxury car (like this one). That is why we do not ordinarily think of people who buy luxury items as killing or blinding the people whom they might have aided if they had instead donated their money to charity.What would Singer say about my Buchanan-Dorf syndrome example? Unlike in the case of the art museum--where we are in some sense comparing apples (art) to oranges (vision), here we have an apples-to-apples (vision-to-vision) comparison. Singer would surely say that you would do more good by funding trachoma treatment for a thousand people than by funding Buchanan-Dorf treatment for yourself. But does that mean that you are obligated to forgo treatment for yourself?Here I think that Singer's utilitarianism gets stuck. Singer could say that you are not obligated to forgo the treatment for yourself by denying that his utilitarianism has anything to say about moral duty. Note that his Times essay talks about doing good but not at all about right, wrong, morality or immorality. But if that's a general feature of utilitarianism, then utilitarianism is monstrous. Suppose that the situation were reversed. Suppose that the eyes of persons with a harmless condition called Dorf-Buchanan Syndrome contain a chemical that, even in tiny quantities, provides the only known cure for trachoma, so that cutting out your eyes and grinding them up will save a thousand people from blindness for fifteen years. If utilitarianism has nothing to say about right or wrong, then Singer cannot even say that it would be wrong for the state (or some third party) to forcibly remove your eyes to grind them up.The foregoing example is simply a variant of a very old challenge to utilitarianism. It can take the form of the trolley problem or the question whether a doctor may cut up a healthy person to harvest his organs and thereby save five unrelated sick people. For thoroughgoing utilitarians the answer is always given by numbers: Which combination of acts and omissions leads to the greatest good for the greatest number? For deontologists, the distinction between acts and omissions is crucial.Utilitarians, for their part, have posed challenging hypothetical examples for deontologists--mostly dealing with catastrophes. If it is always wrong to torture, the utilitarian asks, does that mean that it is wrong to torture the terrorist who has planted the bomb that will kill a million people?In response to these various challenges, utilitarians and deontologists have developed variations that blur the lines between the two. We have utilitarians with side constraints and we have rule utilitarians who purport to be able to derive most of the rules of deontological moral reasoning from considering long-term as well as short-term consequences of classes of actions. From the other side, we have threshold deontologists, whose deontology gives way to utilitarianism upon the crossing of some threshold from mere ordinary harm to catastrophic harm.I'm not going to defend any of these comprehensive positions here. Instead, I simply want to make an observation about how I end up skeptical of pure utilitarianism from the opposite direction than Professor Buchanan does. As he rightly notes, utilitarianism is frequently used by right-leaning economists as the ground for resisting redistributive policies: If we aggregate all utility, then we needn't worry about distributional questions, and the redistribution process itself will have transaction costs that lower total welfare, so redistribution is wrong, they say.But I tend to think that utilitarianism, used honestly, has the opposite problem. Given the diminishing marginal utility of wealth, in a wide range of circumstances one can do more good with one's money by giving nearly all of it away than by spending it on oneself and one's family, even once one takes account of transaction costs. So if the greatest good for the greatest number really is a moral principle, then one is obligated to give away nearly all of one's money--for otherwise one is effectively choosing creature comforts over blinding people and inflicting starvation on them. In other words, the real problem with utilitarianism is that it is too demanding, not that it is insufficiently demanding.

Friday, August 23, 2013

One of the recurring themes of my Dorf on Law posts has been the meaninglessness of the concept of "economic (or Pareto) efficiency." I have attempted to explain why the claim that economics is a positive science -- which carries with it the claim that one can make neutral claims, based on so-called economic reasoning, free of the taint of mere normative moralizing -- is ultimately wishful thinking, at best, and venal deceit, at worst.

There are several ways in which this broad point can be made. The most obvious is to analyze the theoretical structure that supposedly backs up the claims of scientific rigor in economics. It is often useful to analyze the assumptions (especially the unspoken ones), but even better, it is helpful to see how the standard theoretical structure is itself based on naked moralizing. As a colleague once put it to me, in summarizing a law-and-economics paper that attempted to justify the simplistic version of utilitarianism on which so much (bad) scholarship relies: "The authors aren't just arguing that everyone should agree with them about utilitarianism. They're arguing that your mortal soul is at risk, if you don't believe in utilitarianism." Of course, the authors in question never mentioned morality, and they surely would have been deeply offended by the suggestion that they were closet moralists, but part of the deep (valid) critique of mainstream economics is that it is a thinly veiled normative case for leaving the distribution of wealth alone.

As satisfying (and even, I am hesitant to admit, fun) as it can be to play with the theoretical underpinnings of economics, most people have not studied economics at the level necessary to see why the devastating arguments against mainstream theory are so devastating. It is necessary, therefore, to offer telling examples to show that "economic thinking" does not provide useful guidance in thinking about policy questions. Because of the underlying emptiness of orthodox economic theory, all applications of that approach to real-world questions end up providing no useful guidance to policy.

Recently, for example, I noted a vivid example regarding the relative costs of imprisonment. Harper's reported that the average cost of holding a prisoner at the Guantanamo Bay prison is $900,000 per year, while the cost of holding a prisoner in a SuperMax prison is about $65,000. Even so, the "economic case against Gitmo" is hardly a slam dunk. Anyone who wants to defend the continuation of Gitmo can simply say that there are unmeasured benefits of keeping terrorism suspects out of the United States. Their opponents can then claim that the cost of Gitmo should include the cost to our global reputation, which can manifest itself in dollars-and-cents costs (heightened security needs, rebuilding targets of terrorism) as well as other important costs. There is no right answer, at least as provided by an economistic approach.

I came across a similar example about twenty years ago, when I read an article by two professors (who were, I think, on the faculty of a military college), who had worked out a cost/benefit analysis, comparing the military academies with the alternative institutions that train future officers. (For the latter, think of the movie "An Officer and a Gentleman.") They found that the non-academies produced graduates whose careers were generally more successful than academy graduates, as measured by ultimate rank achieved and so on. They also found that the cost of training someone at West Point or Annapolis was something like ten times the cost of training someone in a nameless military training program.

Again, a slam dunk, right? Hardly. The publication that ran the original article soon ran a series of letters, one of which was especially notable. There, an academy graduate argued passionately that the benefits of running the traditional academies could not possibly be measured in the cramped way that the pointy-headed professors had adopted. The continuation of the Long Gray Line, the tradition of the Army/Navy game, the connection to the past, were all important -- and, by implication, presumptively greater than any cost.

At the time, I scoffed at that argument. It struck me as an example that liberals can use to say that "economic reasoning" provides a solid answer, whereas mushy-headed sentimentalism caused people (certainly including politicians) to continue to support the wrong policy choice. But of course, the truth is that there is no right or wrong policy choice here, either, based on this kind of reasoning, at least as an objective matter. Once again, the outcome is determined by what one includes and excludes.

An even clearer example of this problem showed up recently in the op-ed pages of The New York Times. A few Sundays ago, the ethicist Peter Singer, in "Good Charity, Bad Charity," provided a classic economistic case for the proposition that some charitable donations are clearly morally superior to others. Singer walked readers through a numerical example, comparing money that could either be donated to build a new wing on an art gallery, or to reduce the incidence of an eye disease that afflicts children in poor countries. He concluded by saying that, even putting extremely unlikely weights on what people care about, the donation to reduce disease must be morally superior to the donation to help display art in a more pleasing way.

I confess that I found Singer's article more than a bit appealing. That is hardly surprising, of course, because even though I am recovering from my training as an economist, I am still an economist. Singer's brilliance was in making it seem that there are some questions to which the answers are so obvious that it really does not matter what assumptions one makes, within the broadest range of reasonable possibilities. There really is a right answer.

Again, the letters flowed in. The Timesprinted a few, and the first two struck me as particularly important. The first letter-writer pointed out that (like most such economistic arguments), Singer's method of formulating the question created a slippery slope, providing no principled stopping point for guiding charitable giving. Singer's approach ultimately supports the mindless people who fault high-profile philanthropists for not giving all of their money away. At the very least, it argues for a strict hierarchy of giving, which will result in zero giving for less morally worthy charities, so long as the money available for charitable giving is finite.

For my purposes here, however, the most important letter was the second one, which reads:

An effective attack on the scourges that Peter Singer cites, and so many
other endemic diseases, will be mounted only by an ethical society with
an educated, broadly aware populace. It is a society’s cultural
institutions — its libraries, museums, universities — that provide the
foundations for such a society. A rich cultural heritage enables us to
develop the “better angels of our nature.”

Can anyone doubt that Andrew Carnegie’s gifts to establish a system of
public libraries have been far more meaningful to society than if he had
given that money to fight a particular disease?

It is not a choice of giving to one or the other; neither is a “bad charity.”

The point is that a proper cost/benefit analysis must take into account the cost of diverting funds from "better angels"-producing charities. I sincerely doubt that the letter writer would be comfortable recasting his argument in such crude cost/benefit terms, but that is actually the point. Even casting anti-economistic arguments in economistic ways still undermines economistic thinking.

In this case, the problem is not just unmeasured costs and benefits of Gitmo or military academies, but the unmeasured costs of failing to "produce moral people." Singer presumes the existence of people who even care about other people, which is the necessary condition for mainstream economists' claim that they can provide the positive analysis, and the normative analysis is someone else's job (actually, everyone else's job). If we do not invest in our precious stock of moral people, however, we will have no idea what to do with the output of economists' reasoning.

Thursday, August 22, 2013

By Mike Dorf
In my latest Verdict column, I discuss the Obama Administration's continued refusal to declare that the July coup in Egypt was a coup. As most readers probably know, such a determination would render Egypt ineligible for further military aid. But, as I note in the column, lawbreaking with respect to foreign affairs and national security fits a broader pattern by both Obama and most of his recent predecessors. As I also note, the lone exception is President George H.W. Bush.

What might explain Bush I's seemingly unique respect for the rule of law in foreign and military matters? Here are a few non-mutually-exclusive possibilities:

1) Arbitrary Time Frame

I started my survey with President Reagan but Reagan's two immediate predecessors--Presidents Ford and Carter--also had pretty clean records when it comes to following domestic and international law with respect to foreign affairs and the use of force. President Nixon, needless to say, did not, but still, just backing up the timeline undermines the argument for the uniqueness of Bush I.

2) One-term Presidency

Building off of number 1), it's worth noting that Bush I and Carter each served only one term, and Ford served less than a term, whereas the lawbreakers--Nixon, Reagan, Clinton, Bush II, Obama--were all two-termers. However, I'm skeptical of this explanation, because much illegality occurred during first terms: Nixon's bombing of Cambodia; Reagan's invasion of Grenada; Bush II's Iraq invasion and torture policy.

3) Line-Drawing Questions

My column declares that Bush I had a clean record based largely on the authorization for and conduct of the first Gulf War, but one could quibble based on the invasion of Panama in December 1989. I give Bush the benefit of the doubt on that one, however. The Noriega-backed government had declared that a state of war existed between the U.S. and Panama, and so I regard that declaration as satisfying the international requirements for armed self-defense and excusing Bush from the need for prior congressional authorization. A critic, however, could say that deployment of U.S. force around the Canal Zone itself precipitated the Panamanian declaration. I take no position on the wisdom of the invasion.

4) Wartime Experience

Ford, Carter and Bush I had WW II military experience. Perhaps those experiences led them to be cautious in the use of force. But maybe not. Presidents Kennedy and Nixon also served in the military during WW II. (All five served in the Navy. President Reagan served in the Army in WW II, but mostly in a stateside filmmaking unit so we'll put his case aside as sui generis.) Nixon was a lawbreaker and Kennedy's Bay of Pigs invasion was problematic as a matter of international law; further, whatever the legality of Kennedy's Vietnam policy, it certainly wasn't marked by caution about the use of military force. The right generalization here seems to be that beginning with Clinton, military service is not needed in presidents. (Both supporters and detractors tried to make something--positive or negative--of Bush II's National Guard service, but it never got much traction in either direction.)

5) Diplomatic Experience

As Ambassador to the UN and later, envoy (essentially an ambassadorial position) to China, Bush I may have gained an appreciation for the value of diplomacy. He was widely regarded as successful in getting international buy-in for the first Gulf War.

Bottom Line: All of the foregoing, as well as some substantial amount of luck due to the timing of the foreign policy issues faced, probably played some role in somewhat distinguishing Bush I from other recent presidents. That's not a nice neat thesis, but then nice neat theses often are false.

Wednesday, August 21, 2013

In my Verdict column for this week, I discuss Floyd v. City of New York, a decision from Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York, holding that the city's stop-and-frisk practices violated the Fourth and Fourteenth Amendment rights, respectively, against unreasonable searches and seizures, and equal protection. I explain in the column that I find quite persuasive the court's conclusion that police officers in New York, with the encouragement of (and pressure by) their superiors, carried out searches and seizures that lacked a basis in reasonable suspicion and that regularly discriminated on the basis of race. I suggest, however, that notwithstanding the validity of these conclusions, one could plausibly have used a different measure for determining racial motivation than the court decided to use. And in some cases (though not in Floyd), the distinct measure could serve to exonerate the motives of people whose actions might, at first glance, appear attributable to race or other suspect classifications.

In this post, I want to highlight a broader phenomenon that I think is in play here. Our current law of equal protection requires plaintiffs to prove not only that an outcome was unfair and racially disparate but either that the law used an express racial criterion (not relevant here) or that the actors involved (whether police, public schoolteachers, or other public officials) acted with racially discriminatory intent. This means that even if one or more racial groups suffer an unfair and racially disparate distribution of benefits and burdens, they have no constitutional cause of action if the government actors' motives turn out to have been non-racial in nature. Racial inequality is not enough, then, for a complaint -- there must be a perpetrator with bad motives behind the inequality.

The broader phenomenon is the fact that in general, when victims suffer but have no perpetrator to blame, the victims cannot recover damages or enjoin their victimization from continuing, and they rarely attract the same level of concern or empathy from others that victims of bad actors do. If someone deliberately hurts you, then you can sue that person (or his or her employer), but if you are hurt through no one's fault, you are on your own. I think the inclination to assign blame is hard-wired into people. Even when we stub our toes on a chair, we have been known to kick the chair, as though an inanimate piece of furniture were somehow to blame for our toe pain, as though without some makeshift perpetrator, the injury would not be real. Oliver Wendell Holmes makes this point in The Common Law.

I think our tendency to assign blame, though understandable as a feature of agency-seeking thought patterns that may have served us well evolutionarily, has a dark side. If we cannot find a perpetrator for a victim's injuries, our inclination is to blame the victim. If there can be no victim without a perpetrator, then blaming the victim makes sense: there must be someone to blame, and if that someone does not exist outside of the victim, then he must be the victim himself. This tendency is destructive. It means that when someone suffers, we typically add insult to injury by doing little to end the suffering while simultaneously stigmatizing the one who suffers as having only himself to blame.

In the context of race, this is a familiar story. One looks at the racial disparity in the prison population and blames either the racism of the population (identifying a new Jim Crow) or the bad behavior of African Americans. People react similarly to high-profile cases in the news. Much of the population split quite dramatically, for example, on the case of Trayvon Martin and George Zimmerman. Many on one side believed that Zimmerman was a racist vigilante looking for the opportunity to gun down an African American youth. Many on the other side took the view that Martin physically attacked Zimmerman without provocation, some pointing to a photo of Martin with guns and marijuana plants to prove that he was a "thug." In seeking to resolve the dispute in one or the other way, the temptation was to identify one of the people as evil and malign and the other as innocent, but such oversimplifications are often inadequate to the task of explaining what went wrong. As some have pointed out, one can easily imagine a scenario in which both Zimmerman and Martin, under the circumstances they faced, were lawfully entitled to "stand their ground" under Florida law.

The problem, in other words, may be structural rather than attributable to someone's or some group's bad actions. I think we are frequently inclined to exclusively look backward and ask whom to blame for a bad outcome. But it can be far more productive and truer to the facts of victimization in the real world to also look forward and to ask what we can change to make prior bad outcomes less likely to recur in the future. Looking for a "bad guy" can be satisfying to an elemental love of retribution and righteous outrage. But victims without perpetrators are no less deserving of our concern, and all victims need more from us than a willingness to point the finger at a real or imagined evildoer. Sometimes, there really are villains. But often, there are not, and a willingness to accept this and nonetheless to champion the needs of victims is what is called for.

Tuesday, August 20, 2013

In yesterday's post, I discussed the severability analysis in Awad v. Ziriax. The federal district court invalidated Oklahoma's ban on judicial application of sharia and went on to find that its further ban on judicial application of international law was non-severable, and thus had to fall along with the sharia ban. Neither the court nor the parties appear to have questioned the assumption that the international law ban, if it had been passed as a stand-alone provision, might have been unconstitutional. Here I'll consider that possibility--and in the course of doing so, I'll also reconsider the meaning and constitutionality of the sharia ban itself.
The international law ban reads, in relevant part, as follows: "The courts shall not look to the legal precepts of other nations . . . . Specifically, the courts shall not consider international law . . . ." Taken at face value, this provision is plainly invalid. Why? Because in some circumstances federal law requiresstate courts not only to consider, but actually to apply, international law. Even the recalcitrant Virginia judges in the storied case of Martin v. Hunter's Lesseeunderstood that they were obligated to apply a federal treaty in preference to state law; they merely disagreed about who had ultimate authority to construe the federal treaty.

Nor does the state court obligation to apply international law stop with treaties. Pursuant to the Sosadecision, a foreign plaintiff may rely on some aspects of customary international law to obtain relief against tortfeasors, and under Testa v. Katt, state courts would need to be open to such suits on an equal basis with their availability to hear analogous cases arising under state law. And international law incorporated into federal law may provide a valid defense to a state law civil or criminal action.

Accordingly, if read literally, the Oklahoma international law ban is plainly invalid.

However, it probably shouldn't be read literally. For one thing, there is the principle of constitutional avoidance. For another, additional language in SQ 755--the ballot initiative that adopted the ban--states that Oklahoma courts follow and apply federal law. I think the best reading of the international law ban is that Oklahoma courts are permitted to apply international law when some other source of law--such as state law, federal law or private law in the form of a contractual choice-of-law clause--incorporates or invokes international law, but that they are forbidden from turning to international law as a source of guidance in interpreting Oklahoma law. In other words, SQ 755 takes the view of international law that Justice Scalia took in his dissent in Roper v. Simmons and that the late Chief Justice Rehnquist (joined by Justices Scalia and Thomas) took in Atkins v. Virginia.

In a moment, I'll ask whether there's anything impermissible about doing that, but first, I want to note that if the foregoing paragraph sets forth the best reading of SQ 755's international law ban, then, because it is contained in the same statutory phrasing, SQ 755's sharia ban is probably best read in the same way. Under that reading, SQ 755 would not bar Oklahoma courts from applying sharia when sharia is incorporated via state law (through contract law, say) or federal law, but the Oklahoma courts are barred by SQ 755 from turning to the Quran, the hadiths or the ulama to understand the meaning of some unclear provision of Oklahoma law.

Read in that way, the sharia ban was one of the most unncecessary laws ever enacted. I searched through Oklahoma case law and--unsurprisingly--could not find a single instance of an Oklahoma court relying on sharia as a source of interpretive guidance for unclear Oklahoma law. Indeed--and in a bit of a pleasant surprise--I found very few instances, and no recent instances, of Oklahoma courts turning to Christian holy texts as a source of interpretive guidances. Indeed, the bulk of cases that contain any discussion of such matters are cases in which the courts consider whether it was reversible error for a prosecutor to refer to the Bible (an eye for an eye, a life for a life) in their death penalty closing arguments. The Oklahoma courts say that such arguments are improper but not always reversible.

Still, it is not inconceivable that the Oklahoma courts might turn to Christian (or Jewish or Buddhist) holy texts as a source of interpretive guidance. After all, Supreme Court Justices sometimes do so. For example, in (the since-overruled) Bowers v. Hardwick, Chief Justice Burger relied on "Judeo-Christian moral and ethical standards" in support of construing the Fourteenth Amendment to fail to protect "homosexual sodomy." In Roe v. Wade, Justice Blackmun's majority opinion repeatedly invoked Christian teachings about abortion in support of his conclusion that the Fourteenth Amendment does protect an abortion right. And in California v. Hodari D, Justice Scalia, for the Court, quoted Proverbs ("The wicked flee when no man pursueth") in support of the proposition that flight upon seeing the police by itself might give rise to sufficient individualized suspicion to validate a seizure of the person under the Fourth Amendment (although the Court did not decide the point in that case).

One might think that all such invocations of religious authority as interpretive guidance violate the Establishment Clause. If so, then the proper judicial response to the sharia ban is not to enjoin it but to expand it. The constitutional problem, in this view, would be that SQ 755 does not go far enough. However, if one thinks that it is permissible for courts to invoke religious traditions for interpretive guidance in the obviously makeweight fashion described above, then SQ 755's sharia ban would be unconstitutional religious discrimination for prohibiting Islamic sources of interpretive guidance but permitting other religious sources of guidance.

So much for my digression regarding the meaning and validity of the sharia ban. Now let me return to the question with which I began: Is there anything independently unconstitutional about refusing to look to international law as a source of interpretive guidance for Oklahoma law? I don't think so. To be clear, I regard the conservative campaign against the influence of foreign and international law as both misguided and futile (as I explained in a 2005 essay). But that doesn't mean it's unconstitutional.

Might one reach a different conclusion where, as in SQ 755, political actors instruct judges not to consider international law, rather than the judges deciding for themselves not to consider such sources of guidance? One might think that a law instructing courts not to use their standard interpretive toolkit violates the separation of powers, but there are serious problems with this view.

I think the separation-of-powers objection is wrong on its own terms, at least with respect to statutory interpretation. A legislature that passes a law can also pass guidelines for the courts to use in interpreting the law--at least if those guidelines are not independently objectionable (e.g., "interpret the law in whatever way favors white people"). Thus, the so-called Dictionary Act defines various terms in federal statutes, and it is not invalid even where the Dictionary Act instructs courts to apply definitions that they would reject if left unguided.

Of course, the legislature cannot tell the courts how to interpret the constitution. E.g., a federal statute instructing the courts that the Equal Protection Clause shall be interpreted in precise accordance with the original understanding would be invalid--assuming that the courts would, if left to their own devices, turn to other sources of interpretive guidance as well as, or instead of, the original understanding. However, this principle is irrelevant in the present context because SQ 755 is itself a constitutional amendment. Thus, even if the Oklahoma legislature cannot instruct the Oklahoma courts how to interpret the Oklahoma constitution, a provision of that very constitution can. This disposes of any separation of powers objection.

Finally, a federal court cannot enjoin a state official from enforcing SQ 755's international law ban on the ground that the ban violates Oklahoma law because, under the Pennhurstdoctrine, doing so would violate the state's sovereign immunity. So even if SQ 755's international law ban were a violation of the Oklahoma constitution's separation of powers, a federal court could not enjoin it on that basis.

So there you have it: Both the district court and the parties appear to have been correct in their assumption that the international law ban--properly understood--is not independently objectionable. Aren't you glad you asked?

Monday, August 19, 2013

By Mike Dorf
Last week, in Awad v. Ziriax, Federal District Judge Vicki Miles-LaGrange ruled that Oklahoma's ban on sharia law--approved by the state legislature and the voters in 2010--is unconstitutional on the ground that it is religious discrimination. That ruling seems plainly right. The Oklahoma courts might be called upon to apply sharia when either private law or the law of a sister state or foreign jurisdiction made applicable by the relevant choice-of-law principles incorporates it. But whereas State Question 755, as the referendum that enacted the sharia ban is known, would forbid the application of Muslim law, Oklahoma does not forbid looking to other bodies of religious law in like circumstances. Thus, for example, presumably SQ 755 would forbid an Oklahoma court from looking to the substance of sharia to determine whether there was compliance with a contract calling for the delivery of halal food, but there would be no prohibition on looking to Jewish law in the construction of a contract for the delivery of kosher food, or to Jain sacred texts to measure compliance with a contract for the delivery of Jain-suitable food. Etc.

SQ 755 does not merely forbid the application of sharia. Its operative text reads as follows: "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law." I note in passing that in this choice of phrasing, Oklahomans appear to be implying that sharia is a legal precept of an other culture, but that only provides a further reason for thinking the sharia ban unconstitutional as discriminating against Islam and Muslims. I want to focus here and in a follow-up post on the prohibition on state courts considering international law.

While Judge Miles-LaGrange is on solid ground in invalidating the portion of SQ 755 that forbids state courts from applying sharia, her opinion strikes SQ 755 in its entirety, rejecting the state's suggestion that she sever the sharia ban from the portion of SQ 755 banning judicial consideration of "the legal precepts of other nations", i.e., "international law." In my follow-up post tomorrow, I'll consider whether the international law ban might itself be unconstitutional, and in doing so, I'll also reconsider whether the court ruled correctly that the sharia ban is invalid. For now, however I want to assume that the sharia ban is unconstitutional but that a ban on international law would be valid if enacted as a stand-alone provision. Was the judge right to say that the international law ban was non-severable from the sharia ban?

The opinion correctly treats severability as a question of state law. The court quotes the Oklahoma severability statute, which amounts to a presumption of severability, with two exceptions. An invalid provision will be treated as non-severable if either: (a) "the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one"; or (b) "the remaining valid provisions or applications of the act standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent." (This language appears to be borrowed from the federal judge-made law of severability.)

If one were simply to apply the foregoing statutory language, one would conclude that the international law ban is severable from the sharia ban. The provisions don't interlock or depend on one another in any obvious way. This is not a case where, say, the two provisions at issue amount to a substantive conduct rule and a penalty provision. They are independent instructions to the Oklahoma courts.

So why does Judge Miles-LaGrange find otherwise? She cites a 2012 Oklahoma Supreme Court opinion that interprets the language quoted above to include an invisible third exception. That opinion states that the reviewing court must also determine whether "the Legislature would have enacted the remainder of the statute without the offending language." In the cited case the answer was yes, so severability was upheld, but Judge Miles-LaGrange finds that SQ 755 would not have been adopted without the sharia ban, which was the overwhelming focus of public debate. The international law ban was very much an afterthought.

I can't really find fault with the judge's application of Oklahoma severability principles, in light of the reference in the recent Oklahoma case law to subjective legislative intent. But I do find fault with the Oklahoma Supreme Court's interpretation of its severability statute. The statute does not say that courts should find non-severability based on speculation about whether the legislature would have passed particular provisions standing alone. It refers to whether the remaining provisions are "incomplete" and "incapable" of execution "in accordance with the legislative intent." That language in exception (b), it seems to me, calls for an inquiry with the same spirit as the inquiry required by exception (a): Reviewing courts should ask how the legislature intended the remaining provision to operate, not whether the legislature would have enacted it all. Given the logrolling one sees in legislatures, it's almost always going to be possible to say that some valid provision wouldn't have been enacted but for the inclusion in the overall legislative package of an invalid provision. Yet doing so would convert the presumption of severability into a presumption of non-severability.

In this regard, the Oklahoma Supreme Court's analysis strikes me as a wrong turn reminiscent of (and almost exactly contemporaneous with) the severability analysis offered by the four dissenting Justices in the Affordable Care Act Case. The dissenters there made a plausible case that the core of the ACA--private exchanges; the obligation to insure people regardless of pre-existing conditions--had to fall upon the invalidation of the individual mandate, in light of the fact that the mandate was enacted in order to avoid the adverse selection and moral hazards that would arise if the core provisions were not coupled with an insurance obligation. But the dissenters also said that wholly unrelated provisions of the ACA, provisions which could function perfectly as intended absent the mandate, also had to fall if the mandate were invalidated, simply because they were part of the same overall legislative compromise. To reach that further conclusion, the dissenters took the language in prior severability cases to mean that the proper inquiry includes a separate focus on whether Congress would have enacted the valid provision without the invalid one(s). I think the relevant prior language is susceptible of that interpretation but again, I think it is a wrong turn, for the sorts of reasons why textualists (including at least two of the Affordable Care Act dissenters) typically give for avoiding inquiries into subjective legislative intent in ordinary statutory construction. Indeed, it seems to me considerably more speculative to opine about what Congress would have done in some set of hypothetical circumstances than to opine about the reasons Congress did what it actually did.

Returning to the Awad case, it's not clear to me that Judge Miles-LaGrange erred regarding severability. As a federal judge applying state law principles, the Erie doctrine says she is bound by the state high court's interpretation of those principles, and the Oklahoma Supreme Court has stated that severability includes an inquiry into whether the legislature would have enacted the valid provision absent the invalid provision. Wrongheaded state law must be followed no less than sensible state law, unless it is unconstitutional or preempted. And that's a useful segue into tomorrow's post: I'll ask whether the provision I've been assuming to be valid--the international law ban--is independently unconstitutional, or merely stupid.